Home JENNIE TOURLES, petitioner. JENNIE TOURLES vs. JAMES BYRON.

341 Mass. 305

March 7, 1960 - July 20, 1960

Suffolk County

Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.

On a petition to establish exceptions the bill must be considered in substantially its original form without material modification. [307]

This court established exceptions on petition where the bill stated the exceptions with reasonable clarity and contained sufficient facts to permit a determination of their merits and there was no obscurity through recitation of irrelevant evidence nor an undue amount of material in question and answer form, although a commissioner had reported that the bill as a whole was not in correct form and that to put it in correct form would require "a virtual [entire] redraft." [308]

If goods seized and sold on execution by a sheriff were converted by him, the purchaser at the sale acquired no property in them and was guilty of trespass and conversion upon entering the premises where the goods were and taking them away. [308]

PETITION filed in this court on November 20, 1958, to establish exceptions in the following action.

TORT. Writ in the Superior Court dated February 23, 1954.

The action was tried before Swift, J., who ordered verdicts for the defendant.

Sydney Berkman, (Reuben Goodman & Joseph Kruger with him,) for Jennie Tourles.

James W. Kirk, for Byron.


WILLIAMS, J. This is a petition to establish exceptions taken by the plaintiff at the trial of her action of tort for trespass and conversion against James Byron. The declaration was in four counts of which count 1 alleged the breaking and entering of the plaintiff's building in Falmouth on or about September 3, 1953; count 2 the breaking and entering of the same building on the following day;

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count 3 the conversion of goods listed in an attached schedule designated "A"; and count 4 the same conversion described in somewhat different terms.

The action was tried with that of the same plaintiff against Joseph R. Hall (Tourles v. Hall, ante, 299). The two cases arose out of the same transactions. There was evidence that on August 20, 1953, Hall, a deputy sheriff, levied on the alleged personal property of the plaintiff under an execution issued on a judgment obtained by the defendant against the husband of the plaintiff. The property seized, which consisted of the equipment and fixtures of a restaurant in Falmouth operated by the plaintiff, was sold at execution sale on September 3, 1953, and was purchased by the defendant for $1,000. It was removed and carried away by him on the same and the following day. He took other property from the premises which had not been sold by the deputy sheriff and removed certain portions of the equipment in a manner to cause unnecessary damage to the restaurant. The material evidence relating to the seizure and sale is stated in the opinion in Tourles v. Hall and need not be repeated. At the conclusion of the evidence the judge directed verdicts for the defendant on all counts subject to the plaintiff's exceptions.

The plaintiff's bill sets forth these exceptions and others saved at the trial to rulings upon evidence. On presentation of the bill to the judge the plaintiff was allowed to file a substitute bill. Such a bill was filed on July 25, 1957. There were various conferences to the allowance of the substitute bill and the petitioner alleges "that at the most recent conference, held October 31, 1958, with the said justice, he refused to allow or disallow your petitioner's exceptions." See G. L. c. 231, Section 117. This petition was filed on November 20, 1958. It was referred by this court to a commissioner on January 6, 1959. The commissioner reported on October 30, 1959, that he had examined the transcript of the testimony, a voluminous list of objections to the substitute bill consisting of fifty-six separate items, and an equally voluminous reply to the objections. He said, "I am constrained to find that the bill of

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exceptions as filed does not conform to the truth and I find that it should be corrected and revised, through the elimination of testimony set forth in question and answer form, and otherwise, in order to have it comply in form and substance with the provisions of G. L. c. 231, Section 113, and the decisions of the court respecting bills of exceptions. The corrections and revisions which I deem to be necessary would involve a virtual redraft of the entire bill of exceptions so as to restate much of the evidence and so as to set forth testimony in narrative form instead of verbatim. It is contended by counsel for the petitioner that as commissioner I have no power to rewrite or redraft the bill of exceptions or to revise or modify it in any material way. As I have doubts as to my power and authority to revise, rewrite or modify the bill of exceptions, I submit my report in this form, making the simple findings hereinabove set forth."

A petition to establish exceptions cannot be used as a means of completely redrafting or remodelling the bill, Rines, petitioner, 331 Mass. 714 , 720, and this court has no power to allow amendments. A petition to establish must relate to the exceptions originally filed and disallowed in whole or in part. Squier v. Barnes, 193 Mass. 21 , 24. Barnett, petitioner, 240 Mass. 228 , 230. It was said in Freedman, petitioner, 222 Mass. 179 , 181, "While minor deficiencies may be made complete and comparatively insignificant errors rectified, there can be no material modification of the bill as presented. It must either be allowed or disallowed in substantially that form. . . . If the bill of exceptions as filed, although setting out exceptions actually taken, contains irrelevant and objectionable evidence of such a character as to obscure the questions of law raised, or is of wholly unnecessary bulk, or presents a picture changed in color by the insertion of some evidence and the omission of other evidence, then it is not a true bill of exceptions and ought to be disallowed. A blending of exceptions with a mass of extraneous matter tending to give an unnatural complexion to the case is not a true bill and should not be established."

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Since the petition to establish is based on the failure of the trial judge either to allow or to disallow the plaintiff's bill (see C. F. Hovey Co., petitioner, 254 Mass. 551 , 553), we have no statement or certificate by him as to reasons for disallowance. Nor does the commissioner report facts sufficient to enable us to make an ultimate finding. Maguire, petitioner, 340 Mass. 12 , 14. We infer from his report that he did not intend to find that the exceptions were not properly saved or accurately stated but that the bill as a whole was not in correct form. See Scano, petitioner, 338 Mass. 7 , 8.

An examination of the transcript of testimony leads us to hold that the bill should not be disallowed. Most of the exceptions relate to evidentiary rulings and are stated with reasonable clearness and brevity. They are not obscured by the recitation of irrelevant evidence nor burdened with undue quotations of question and answer. The bill is not greatly dissimilar from the one allowed in Tourles v. Hall, supra. It recites sufficient facts to enable this court to determine the validity of the main exceptions, namely, those to the direction of verdicts for the defendant. The exceptions are established.

It could not be ruled that there was no evidence for the jury. If it were found that the goods which the defendant purchased had been converted by the deputy sheriff, the defendant acquired no property in them, see Champney v. Smith, 15 Gray 512 ; Stanley v. Gaylord, 1 Cush. 536 , 546; Empire Supply Co. v. McCann, 127 Okla. 195, 196; St. Louis & S. F. Ry. v. Lowder, 138 Mo. 533, 538; Restatement: Torts, Section 229, and in removing them trespassed on the property of the plaintiff and converted the goods which he took away. If he removed from the premises goods which had not been included in the sale he was likewise liable for trespass and conversion. The exceptions to the direction of verdicts for the defendant are sustained. It is unnecessary to pass upon the exceptions to rulings on evidence as it is unlikely that the questions involved will again be presented at a new trial.

So ordered.